Gay marriage: Pro and con

The bisexual individual will make the additional argument that he was born with attraction to both sexes. Since discrimination based upon sexual orientation is abhorrent, there is no reason why marriage should be limited to heterosexuals and homosexuals alone. That’s discriminatory.

Interestingly, now the institution of marriage would again be challenged in the courts by a plaintiff seeking bisexual marriage. Again, the people of California would have voted for an initiative that is subject to being thrown out by the courts. Another cultural and political issue will be presented to the courts for a decision.

Should the boundaries of marriage be limited to two individuals only? Should the boundaries of marriage be expanded on the basis of love alone? Does equal protection prohibit discrimination against bisexuals in marriage? Why should marriage discriminate based upon sexual orientation? Should the courts invent a constitutional right to bisexual marriage?

While all of these arguments are being made in favor of individual rights, the people of California will have voted to define the institution of marriage. But the courts will again be asked to reverse the will of the people on the basis of another argument against discrimination and in favor of love. What will prevent the courts from reversing the vote of the people by declaring that a new constitutional right was found to exist? Will the debate ever end? At some point, the people should stop and question whether our democratic system and the initiative process are operating as intended.

This leads to one of the most important issues Americans are presently facing but which has been lost in the rhetoric of the debate: the devastating effect the California marriage cases have had on our democratic form of government. The people of California voted to preserve marriage as a relationship between one man and one woman in 2000 (Proposition 22) and again in 2008 (Proposition 8). Californians voted not once, but twice, for the historical definition of marriage. Regardless of how one feels about same-sex marriage, we should all recognize that if the U.S. Supreme Court reverses the people’s vote by creating a new and novel constitutional right, it will threaten the right of the people to govern themselves through the voter initiative process and embolden the courts to continue to invent new constitutional rights and, if it deems necessary, to overturn the will of the people in the process.

If the people of California, or any other state, want to adopt same-sex marriage, bisexual marriage or any other form of marriage, let them do so through the voter-initiative process, not through the courts. Should the U.S. Supreme Court overrule Proposition 8, it will be a dark day for democracy, the effects of which will not be fully understood until the next popular voter initiative is reversed by a court that chooses to create law rather than to interpret law.